I.T.O.-5(1), Firozabad v. Smt. Shashi9 Parolia, Firozabad

ITA 458/AGR/2010 | 1999-2000
Pronouncement Date: 29-03-2012 | Result: Allowed

Appeal Details

RSA Number 45820314 RSA 2010
Assessee PAN AFLPP4159H
Bench Agra
Appeal Number ITA 458/AGR/2010
Duration Of Justice 1 year(s) 3 month(s) 19 day(s)
Appellant I.T.O.-5(1), Firozabad
Respondent Smt. Shashi9 Parolia, Firozabad
Appeal Type Income Tax Appeal
Pronouncement Date 29-03-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 29-03-2012
Date Of Final Hearing 29-03-2012
Next Hearing Date 29-03-2012
Assessment Year 1999-2000
Appeal Filed On 10-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE : SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI A.L. GEHLOT ACCOUNTANT MEMBER ITA NO. 458/AGRA/2010 ASSTT. YEAR : 1999-2000 INCOME-TAX OFFICER VS. SMT. SHASHI PAROLIA 5(1) FIROZABAD. 7 GANESH NAGAR FIROZABAD. (PAN : AFLPP 4159 H) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA JR. D.R. RESPONDENT BY : SHRI ANURAG SINHA ADVCATE DATE OF HEARING : 29.03.2012 DATE OF PRONOUNCEMENT OF ORDER : 29.03.2012 ORDER PER BHAVNESH SAINI J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II AGRA DATED 22 ND SEPTEMBER 2010 FOR THE ASSESSMENT YEAR 1999-2000 ON THE FOLLOWING GROUNDS : 1. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS)-II AGRA HAS ERRED IN LAW AND ON FACTS IN HOLDING THE N OTICE U/S. 148 AS NULL AND VOID IGNORING THE FACTS OF THE CASE BROUGHT ON RECORD BY THE ASSESSING OFFICER. 2. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (AP PEALS)-II AGRA HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.7 69 832/- MADE BY THE ASSESSING OFFICER ON ACCO UNT OF UNEXPLAINED CREDIT ENTRIES WITHOUT PROPERLY APPRECIATING THE FA CTS OF THE CASE MENTIONED IN THE ASSESSMENT ORDER. ITA NO. 458/AGRA/2010 2 3. THAT THE ORDER OF LEARNED COMMISSIONER OF INCOM E-TAX (APPEALS)-II AGRA BEING ERRONEOUS IN LAW AND ON F ACTS DESERVES TO BE QUASHED AND THAT OF THE ASSESSING OFFICER DESERVES TO BE RESTORED. 2. THE FACTS NOTED IN THE IMPUGNED ORDER BY THE LD. CIT(A) ARE THAT THE AO PASSED EXPARTE ASSESSMENT ORDER U/S. 147/144 OF THE IT ACT ON 12.12.2006. THE ASSESSEE CHALLENGED THE INITIATION OF RE-ASSESSMENT PROCEEDI NGS U/S. 147/148 OF THE IT ACT BEFORE THE LD. CIT(A). IN THIS CASE RETURN OF INCO ME WAS FILED ON 13.10.1999 SHOWING RETURNED INCOME OF RS.1 30 538/-. SUBSEQUENTLY THE AO RECEIVED INFORMED FROM ADIT (INV.) AGRA AND REOPENED THE ASSESSMENT BY RE CORDING THE REASONS FOR REOPENING OF THE ASSESSMENT. THE LD. CIT(A) REPRODU CED THE REASONS FOR REOPENING OF ASSESSMENT IN WHICH IT IS BRIEFLY NOTED THAT M/S. CAPITAL INVESTMENTS NEW DELHI HAS PROVIDED BOGUS ENTRIES OF SALE PROCEEDS OF SHARES T O VARIOUS ASSESSEES THROUGH BANK ACCOUNT OF UCO BANK NEW DELHI. THE BENEFICIARIES H AVE TAKEN THE ENTRIES BY PAYING IN CASH AN AMOUNT EQUIVALENT TO THE DRAFT/CHEQUE AM OUNT AND CERTAIN PREMIUM ON THAT HAVE BEEN PAID. THE ASSESSEE WAS STATED TO BE ONE O F THE BENEFICIARIES WHO RECEIVED THE BOGUS ENTRY ON 09.05.1998 AND RECEIVED AN AMOUN T OF RS.2 95 260/- THROUGH UCO BANK NEW DELHI. ACCORDINGLY REASSESSMENT PROCEEDI NGS WERE INITIATED AGAINST THE ASSESSEE. THE LD. CIT(A) THEREAFTER NOTED THAT THE ASSESSEE HAD PURCHASED 19000 SHARES OF OJASWI TRADES INVESTMENT AND FINANCE LTD. ON 04.01.1997 FOR A CONSIDERATION OF RS.1 90 000/- AND OUT OF THESE SHA RES SOLD 4000 SHARES ON 10.02.1998 @ RS.74/- PER SHARE FOR A CONSIDERATION OF RS.2 96 000/- AFTER DEDUCING ALL THE ITA NO. 458/AGRA/2010 3 CHARGES. THE LD. CIT(A) FOUND THAT THE ASSESSEE HAS SHOWN LONG-TERM CAPITAL GAINS ON ACCOUNT OF SALE OF THESE 4000 SHARES IN ASSESSMENT YEAR 1998-99 AS PER COMPUTATION OF INCOME FILED ALONG WITH THE RETURN COPY OF WHICH W AS FILED BEFORE THE LD. CIT(A). THE LD. CIT(A) THEREFORE NOTED THAT THE CAPITAL GAIN HAS ALREADY BEEN SHOWN IN PRECEDING ASSESSMENT YEAR 1998-99 IN A SUM OF RS.2 96 000/-. THEREFORE REOPENING OF THE ASSESSMENT ON THAT REASON IS NOT PROPER. HE HAS REL IED UPON THE ORDER OF ITAT AGRA BENCH IN THE CASE OF AGRA CHEMICALS AND ANNULLED TH E RE-ASSESSMENT PROCEEDINGS. THE ISSUES ON MERITS HAVE NOT BEEN ADJUDICATED. 3. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE MATERIAL ON RECORD. WE DO NOT FIND ANY JUSTIFICATIO N FOR THE LD. CIT(A) TO ANNUL THE REASSESSMENT PROCEEDINGS. IT IS NOT IN DISPUTE THAT THE AO PASSED THE EXPARTE ASSESSMENT ORDER BECAUSE OF NON-COMPLIANCE ON THE P ART OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE ADMITTED DURING THE COURSE OF ARGUMENTS THAT PLEA RAISED BEFORE THE LD. CIT(A) FOR QUASHING OF THE REASSESSM ENT PROCEEDINGS WAS NOT RAISED BEFORE THE AO. IT IS ALSO ADMITTED FACT THAT THE SU BMISSIONS MADE FOR THE FIRST TIME BEFORE THE LD. CIT(A) WERE NOT CONFRONTED TO THE AO FOR FILING THE REMAND REPORT. IT IS THEREFORE ESTABLISHED FACT THAT THE FACTS WHICH WE RE FOUND BY THE LD. CIT(A) WERE NOT SUBJECTED TO EXAMINATION BY THE AO AT ANY POINT OF TIME. NO REASONS HAVE BEEN EXPLAINED AS TO WHY THE PLEA RAISED BEFORE THE LD. CIT(A) WAS NOT RAISED BEFORE THE AO. IT MAY BE NOTED HERE THAT APART FROM THE ADDITI ON OF RS.2 95 260/- THE AO ALSO ITA NO. 458/AGRA/2010 4 MADE SIMILAR ADDITION OF RS.4 74 572/- AND THUS TO TAL ADDITION WAS MADE IN THE ASSESSMENT ORDER IN A SUM OF RS.7 69 832/- WHICH IS MENTIONED IN GROUND NO.2 OF THE DEPARTMENTAL APPEAL ALSO. 4. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO PB- 57 & 58 WHICH IS COMPUTATION OF INCOME AND ACKNOWLEDGEMENT OF FILING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 1998-99 IN WHICH THE ASSESSEE HAS SHOWN LONG-TERM CAPITAL GAIN OF RS.2 52 590/- IN WHICH THE AO CONSIDERED IT TO BE A CASE OF ESCAPEME NT OF INCOME. BUT ADMITTEDLY SUCH FACTS WERE NOT EXPLAINED BEFORE THE AO. THE LD . COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE ORDER OF ITAT AGRA BENCH IN THE CASE OF VINEET KHERA IN ITA NO. 255/AGRA/2004 (PB-70) WAS RELIED UPON BEFORE THE LD . CIT(A) IN WHICH SIMILAR ADDITIONS ON MERITS HAVE BEEN DELETED BUT THE LD. CIT(A) DID NOT DISCUSS THE SAME IN THE APPELLATE ORDER. THE LD. COUNSEL FOR THE ASSESS EE ALSO SUBMITTED THAT OTHER POINTS RAISED BY THE ASSESSEE FOR QUASHING OF THE RE-ASSES SMENT PROCEEDINGS HAVE ALSO NOT BEEN ADJUDICATED BY THE LD. CIT(A) IN THE APPELLATE ORDER. THESE FACTS WOULD SHOW THAT THE LD. CIT(A) HAS NOT CONSIDERED THE SUBMISSIONS O F THE ASSESSEE IN DETAIL WITH REGARD TO QUASHING OF REASSESSMENT PROCEEDINGS AND DECIDIN G THE ISSUE ON MERITS. THE LD. CIT(A) ONLY ON ONE POINT THAT RS.2 96 000/- HAVE BE EN SHOWN AS CAPITAL GAIN IN PRECEDING ASSESSMENT YEAR 1998-99 ANNULLED THE REAS SESSMENT PROCEEDINGS ON WHICH THE AO HAD NO OCCASION TO EXAMINE THE SAME EITHER A T THE ASSESSMENT STAGE OR AT THE APPELLATE STAGE. THE LD. CIT(A) ALSO FAILED TO NOTE THAT APART FROM ADDITION OF ITA NO. 458/AGRA/2010 5 RS.2 95 260/- THE AO ALSO MADE SIMILAR ADDITION OF RS.4 74 572/- IN THE REASSESSMENT PROCEEDINGS. WE ARE THEREFORE OF THE VIEW THAT TH E MATTER REQUIRES RE-CONSIDERATION AT THE LEVEL OF LD. CIT(A). WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE BOTH THE GROUNDS TO HIS FILE WITH THE DIREC TION TO RE-DECIDE BOTH THE ISSUES ON MERITS BY GIVING REASONABLE AND SUFFICIENT OPPORTUN ITY OF BEING HEARD TO THE ASSESSEE AND THE AO. THE LD. CIT(A) SHALL TAKE INTO CONSIDER ATION ALL THE SUBMISSIONS OF THE ASSESSEE ON LEGAL AS WELL AS FACTUAL POSITION AND S HALL DECIDE BOTH THE ISSUES ON EACH AND EVERY ARGUMENT OF THE ASSESSEE. THE LD. CIT(A) IS DIRECTED TO EXPEDITE THE MATTER BEING OLD AS EARLY AS POSSIBLE PREFERABLY WITHIN T HE PERIOD OF FOUR MONTHS FROM THE RECEIPT OF THIS ORDER. 5. IN THE RESULT THE DEPARTMENTAL APPEAL IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29.03.2012. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED BY ORDER 4. CIT CONCERNED 5. DR ITAT AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY